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New South African Immigration Regulation Comes Into Law

President Jacob Zuma and the Minister of Home Affairs, Naledi Pandor, signed off on new immigration regulation on Friday, 16 May 2014 in a move that marks the first time since 2004 that the law has been adjusted. The changes officially came into effect on Monday, 26 May, and the amendments to the act affect foreigners looking to visit, study, work, live and own a business in South Africa.
New South African Immigration Regulation Comes Into Law

Cape Town Magazine


NEW SOUTH AFRICAN IMMIGRATION LAWS

Applying for Visa/Permits

  • While still unofficial, the Department of Home Affairs (DHA) has reportedly outsourced the handling and processing of visa applications to a company called Visa Facilitation Services (VFS). 

How Will the VFS Process Applications?

  • Early reports suggest that VFS will be opening 11 offices, which will be referred to as Visa Application Centres (VACs), around South Africa as early as June 2014.
  • At the VACS, applicants will submit their applications and biometric data for processing. 
  • Once the applications have been thoroughly checked, they will then be scanned and forwarded to the Head Office of Home Affairs in Pretoria. 
  • The VFS will operate strictly as a processing operation and will not offer potential immigrants any advice on immigration rules etc.  Therefore, prospective immigrants will still have to seek advice from immigration consultants, and the consultants will be able to accompany applicants. 
  • The VFS does not have the authority to grant or refuse visas as that decision still lies with the DHA. 
  • There will be an additional processing fee, but the exact amount is yet to be confirmed. 

Changing to Another Visa Whilst in South Africa

  • New regulations also state that one cannot change from a Visitor’s Visa to another type of visa; these applications for change of conditions must be made at a mission abroad, i.e. an embassy or consulate, where the applicant is an ordinary resident or holds citizenship.
  • However, exceptional circumstances include if an applicant is in need of life saving medical treatment or is an accompanying spouse or child of a business or work visa holder who wish to apply for a study or work visa

Life Partner and Spousal Visas

  • Spouses and life partners looking to apply for temporary or permanent residency in South Africa based on a spousal or life partner visa will need to prove that they have been together for two years.
  • The ‘relationship-proving’ time period was significantly reduced from the proposed five year period stated in the draft regulations after the Department of Home Affairs (DHA) received immense pressure from the public to do so.
  • If a partner or spouse was in a previous marriage, it is necessary to provide official documents that prove the dissolution of such marriage either by divorce or the death of the other spouse.
  • The updated regulations also state that life partners will need to attend separate but simultaneous interviews to determine the authenticity of the existence of their relationship.

Eradication of Exceptional Skills and Quota Permit Categories

  • The DHA has officially eradicated the Exceptional Skills and Quota permit categories
  • It is unclear whether those who have submitted an application under one of these categories will still have their application processed. Consult your nearest DHA branch for specifics.
  • Current Exceptional Skills and Quota Permit holders will not be able to renew their permits going forward.

 Renewing a Visa Whilst in South Africa

  • Those looking to renew their visa while in the country must do so 60 days before the current one expires.  This change was reportedly made due to the DHA’s inability to process an application in the previous time period (30 days).

General Work Visa

  • Applications for this visa will have to include a certificate from the Department of Labour confirming the following:
    • despite a thorough search, the prospective employer could not find a South African employee with the skills and experience equivalent to those of the applicant.
    • the applicant has proven skills and experience in line with the job offer.
    • the salary and benefits of the applicant are not inferior to those of citizens or permanent residents.
    • the contract signed by both the employer and applicant stipulates conditions that are in line the labour laws of South Africa.
  • You will also need a document to prove that your qualifications have been approved by the South African Qualifications Authority (SAQA). This document must be translated into one of the official languages of South Africa by a sworn translator
  • The work visa will be valid for a maximum of five years. 

Scarce/Critical  Skills Work Visa

  • The introduction of this visa has not been made clear and there is no official list of what exactly constitutes a scarce skill; meaning, at this moment in time, it’s actually not possible to submit an application within this category.
  • This visa will replace the Exceptional Skills and Quota Visas. 

Visitor’s Visa

  • Visitor’s Visa holders who wish to change the terms or status of their visa must submit an application no less than 60 days prior to the current visa’s date of expiration.
  • Those wishing to extend a stay for longer than three months must provide a police clearance certificate from their home country.
  • Is it no longer possible to change from a Visitor’s Visa to another visa category within South Africa.

Business Visas

  • It will now be a requirement for businesses to get a recommendation letter from the Department of Trade and Industry (DTI).
  • The DTI will conduct a thorough and forensic assessment of the feasibility of the business entity as well as the contribution to the national interest of South Africa.
  • Experts fear that this assessment could cause major delays in the process.
  • A minimum amount of cash that will need to be invested into South Africa will be determined by the Minister of Labour after consulting with the Minister of Trade and Industry.
  • Any accountant registered with the South African Institute of Professional Accountants or the South African Institute of Chartered Accountants can verify the availability of funds for a business visa. Previously, this would have to have been done by a chartered accountant (not just any professional accountant).
  • 60% of the business owner’s workforce must be South African or must be permanent residents employed in various positions.
  • Business visas will be granted for no longer than three years at a time

Intra -Company Visas

  • The employee in question must be employed with the foreign office/ business for a minimum of six months before being eligible for transfer to South Africa.
  • This visa will now be available for four years but is non-renewable.

Study Permit/ Exchange Visa

  • Holders of a Study Permits may not conduct part-time work exceeding 20 hours of labour a week.
  • Both Study and Exchange Visas will only be issued for the duration of the study period or exchange programme respectively. 

Retirement Permit

  • An application must be accompanied by a police clearance certificate.
  • Applicants will no longer need to prove a minimum monthly income of R20, 000 per person from a source other than work; rather, the sum will still be determined by the combination of assets realizing, per month, determined from time to time by the Minister of Labour. 

Fines

  • While the exact amount is not known yet, the penalty fee for those staying in the country illegally will be increased substantially. 

Click here to read Cape Town Magazine's article. 

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